Facebook’s Woes Part II: Haugen’s Testimony and the Law

Facebook’s Woes Part II: Haugen’s Testimony and the Law

Even though we usually focus on issues of technology, cybersecurity, and business on this blog, we're going to do something a little different today. We are going to explore the legal issues surrounding the controversies relating to Facebook that began last week. Even though Facebook is in the strictest sense a technology platform, the revelations brought to light by Frances Haugen are not limited to the day to day mechanics of a particular kind of tech. They also overlap with issues of law, constitutional rights and norms, public and private goods, and safety. While it would not be responsible for us to tell our readers how they ought to feel about these issues, it's still important to know the details surrounding the issues so that everyone can make informed decisions about where they stand. So for this post, we will briefly summarize the controversy, explore the realities of media law in the United States, and generally consider what's at stake in the broad question behind all of these conversations: should Facebook and similar social media platforms be brought under greater regulatory control?

The Story So Far

On Tuesday of last week, former Facebook employee Frances Haugen testified before Congress. In her opening statement, Haugen described what she saw as a pathological tendency by leaders at Facebook to put the bottom line of the business before both the safety of its users and the healthy functioning of American democracy. Specifically, Haugen took issue with the degree to which Facebook has allowed the dissemination of politically divisive content as well as advertising that uses techniques to undermine the mental health of children and teenagers to sell its products. By her accounting, the problem is so bad that it would require numerous legal changes in order to resolve: "The severity of this crisis demands that we break out of previous regulatory frames. Tweaks to outdated privacy protections or changes to Section 230 will not be sufficient. The core of the issue is that no one can understand Facebook’s destructive choices better than Facebook, because only Facebook gets to look under the hood. A critical starting point for effective regulation is transparency: full access to data for research not directed by Facebook. On this foundation, we can build sensible rules and standards to address consumer harms, illegal content, data protection, anticompetitive practices, algorithmic systems and more."

The Law as It Stands

There are a handful of key regulations already in place that frame the legal rights and business practices of social media. The most notable law is the Communications Decency Act, a federal statute passed in 1996. Section 230 of this statute states, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." In other words, social media platforms are not legally liable for content posted by the their users.

What's more, internet-based platforms fall under the jurisdiction of the Federal Trade Commission (FTC), which is responsible for enforcing contract law. By contrast, radio and television fall under the jurisdiction of the Federal Communications Commission (FCC). Even though the FCC has no explicit right to censor content on television and radio, it can issue fines and control access to broadcast licenses. Both the FTC and the FCC are empowered by the commerce clause of the US Constitution to enforce federal statute relating to media content and business practices.

This means that if a conflict between an internet platform and a user goes to court, it will be resolved using contract law. User-agreements that people are compelled to sign before joining a platform delineate what one can and cannot do as a member of a site; the FTC has the full power of the federal government to enforce those contracts. The only medium that is not constrained by any administrative, regulatory body is print.

Much of the legal controversy surrounding Facebook centers on whether the internet ought to be brought under greater regulatory control--whether that means moving the jurisdiction of regulating the internet from the FTC to the FCC, amendments to current statutes like Section 230 of the Communications Decency Act, or the creation of new administrative bodies to regulate the business practices of social media. It also stems from the question of whether Facebook has become such a powerful force in people's lives that it functions as a de facto public institution (which would require it to disclose its internal workings like any publicly owned institution), in spite it being owned by private interests.

What's at Stake?

The First Amendment to the US Constitution gives broad rights to both citizens and businesses to express ideas. There are certain forms of speech, however, that are not protected by the First Amendment. These include speech that serves criminal instrumentality (i.e. you can't use Facebook to coordinate a bank heist or similar robbery), incitements to violence and criminal activity, fighting words, defamation, and obscenity. All of these terms have specific legal definitions--which we don't have room to explore here--, but Haugen and other critics claim that Facebook has neglected to curtail speech that is either criminal or otherwise unsafe, in spite of knowing about it.

All of this is occurring in the shadow of the riot that took place at the US Capitol building on January 6th, for which Facebook may have served as a tool for facilitating the coordination of the rally and riot that followed. A more extreme example of how Facebook may have facilitated threats to public safety occurred in 2018, in which military leaders in Myanmar used dummy Facebook accounts to incite violent ethnic cleansing campaigns against Rohingya Muslims.

Critics of this line of thinking; such as Facebook's own vice president of global affairs, Nick Clegg; claim that placing responsibility for something like the January 6th riot on Facebook is, "ludicrous," and that, "The responsibility for the violence of Jan. 6 lies squarely with the people who inflicted the violence and those who encouraged them..."

As you can see, this issue is not simply a matter of technical know-how. It involves some of the most basic questions about rights, public safety, and law that Americans have been wrestling with since the Revolution. Wherever one falls on these questions, you can always count on Titan Tech to provide you with the most accurate and up to date information on the issues of the day and how they might affect your business.

Stay tuned for more tech news.